A joint return is a single income tax return made by two married individuals covering both of them. A husband and wife may make a single return jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions (26 U.S.C. 6013(a)).
Two consequences follow from that one sentence and they run in opposite directions. If a joint return is made, the tax shall be computed on the aggregate income, which is usually the reason a couple files one, and the liability with respect to the tax shall be joint and several, which is the price (26 U.S.C. 6013(d)(3)). Which of the five statuses this is, and how a taxpayer arrives at it, is set out in filing status.
The Three Exceptions Written Into the Permission
The permission at subsection (a) is not open ended. It carries three exceptions on its face.
No joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien (26 U.S.C. 6013(a)(1)). At any time is the load-bearing phrase, and there are elections that displace this exception, set out further down.
No joint return shall be made if the husband and wife have different taxable years, except that if the taxable years begin on the same day and end on different days because of the death of either or both, the joint return may be made with respect to the taxable year of each. That exception itself has two carve-backs: it does not apply if the surviving spouse remarries before the close of his taxable year, nor if the taxable year of either spouse is a fractional part of a year under section 443(a)(1) (26 U.S.C. 6013(a)(2)).
In the case of death of one spouse or both spouses, the joint return with respect to the decedent may be made only by his executor or administrator, except that in the case of the death of one spouse the joint return may be made by the surviving spouse with respect to both himself and the decedent if no return for the taxable year has been made by the decedent, no executor or administrator has been appointed, and no executor or administrator is appointed before the last day prescribed by law for filing the return of the surviving spouse (26 U.S.C. 6013(a)(3)).
That third exception has a tail. Where an executor or administrator of the decedent is appointed after the surviving spouse has made the joint return, the executor or administrator may disaffirm that joint return by making a separate return for the decedent’s taxable year within 1 year after the last day prescribed by law for filing the return of the surviving spouse, in which case the return made by the survivor constitutes his separate return (26 U.S.C. 6013(a)(3)).
Who Counts as Married for This Section
The section sets its own timing rule rather than borrowing one. The status as husband and wife of two individuals having taxable years beginning on the same day is determined as of the close of that year where both have the same taxable year, or as of the time of death where one dies before the close of the taxable year of the other. An individual who is legally separated from his spouse under a decree of divorce or of separate maintenance is not considered as married (26 U.S.C. 6013(d)(1) and (d)(2)).
A return is not joint until both people have signed it. For a return to be considered a joint return, both spouses must generally sign the return, and where a spouse died before signing, the executor or administrator signs for that spouse, or the survivor signs where no one has been appointed (IRS, Publication 501).
What Joint and Several Liability Reaches
The publication states the consequence in plain terms. Both of you may be held responsible, jointly and individually, for the tax and any interest or penalty due on your joint return, so if one spouse does not pay the tax due the other may have to, and if one spouse does not report the correct tax both spouses may be responsible for any additional taxes assessed. One spouse may be held responsible for all the tax due even if all the income was earned by the other spouse (IRS, Publication 501).
There are two different escapes from that position and they answer different questions.
The first attacks the liability. In some cases one spouse may be relieved of joint responsibility for tax, interest and penalties on a joint return for items of the other spouse that were incorrectly reported on it, relief can be asked for no matter how small the liability, and there are three types available: innocent spouse relief, separation of liability, which is available only to joint filers whose spouse has died, or who are divorced, legally separated, or have not lived together for the 12 months ending on the date the election is filed, and equitable relief. Form 8857 is the request (IRS, Publication 501). The statutory tests behind the three routes are set out in innocent spouse relief.
The second does not attack the liability at all. Recovering one spouse’s share of a refund taken to pay the other’s separate debt accepts the joint return as filed, and that route is set out in injured spouse.
Switching From Separate Returns to a Joint Return
The statute allows the change and then fences it. If an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a), and the time prescribed by law for filing the return for that taxable year has expired, that individual and his spouse may nevertheless make a joint return for that year. All payments, credits, refunds or other repayments made or allowed with respect to the separate return of either spouse for that year are taken into account in determining the extent to which the tax based upon the joint return has been paid (26 U.S.C. 6013(b)(1)).
One thing does not travel with the change. Any election other than the election to file a separate return, made by either spouse in that separate return with respect to the treatment of any income, deduction or credit, shall not be changed in the making of the joint return where the election would have been irrevocable had the joint return not been made (26 U.S.C. 6013(b)(1)).
The election may not be made in any of four situations, and any one of them closes it: after the expiration of 3 years from the last date prescribed by law for filing the return for that taxable year, determined without regard to any extension of time granted to either spouse; after a notice of deficiency under section 6212 has been mailed to either spouse for that year, if that spouse files a petition with the Tax Court within the time prescribed; after either spouse has commenced a suit in any court for the recovery of any part of the tax for that year; or after either spouse has entered into a closing agreement under section 7121 for that year, or after any civil or criminal case arising against either spouse for that year has been compromised under section 7122 (26 U.S.C. 6013(b)(2)).
In the publication’s operational version, you change your filing status from a separate return to a joint return by filing an amended return using Form 1040-X, and you can generally change to a joint return any time within 3 years from the due date of the separate return or returns, not including extensions. A separate return for this purpose includes a return filed by you or your spouse claiming married filing separately, single, or head of household filing status (IRS, Publication 501).
Making the change also reopens time. If a joint return is made under that subsection, the periods of limitations on assessment and on the beginning of levy or a proceeding in court for collection include one year immediately after the date the joint return is filed, computed without regard to the deemed filing dates in paragraph (3) (26 U.S.C. 6013(b)(4)).
And it carries forward what was on the separate returns. Where the sum of the amounts shown as tax on the separate returns is less than the amount shown on the joint return, that sum is treated as the amount shown on the joint return, any negligence or disregard of rules or regulations on either separate return is treated as negligence or such disregard on the joint return, and any fraud on either separate return is treated as fraud on the joint return (26 U.S.C. 6013(b)(5)(A)).
Switching the Other Way Is Almost Impossible
Once you file a joint return, you cannot choose to file separate returns for that year after the due date of the return (IRS, Publication 501).
The one exception is a death. A personal representative for a decedent can change from a joint return elected by the surviving spouse to a separate return for the decedent, and has 1 year from the due date of the return, including extensions, to make the change (IRS, Publication 501).
That asymmetry is the planning point. Separate to joint stays open for years; joint to separate closes on the due date.
The Nonresident Alien Spouse Elections
The exception at subsection (a)(1) can be displaced by election. A nonresident alien individual with respect to whom the election is in effect for the taxable year is treated as a resident of the United States for purposes of chapter 1 for all of that taxable year, and for purposes of the wage withholding chapter for payments of wages made during that year. The election is in effect for an individual who, at the close of the taxable year for which it was made, was a nonresident alien individual married to a citizen or resident of the United States, if both of them made the election (26 U.S.C. 6013(g)).
The publication’s version separates two cases. Generally a married couple cannot file a joint return if either spouse is a nonresident alien at any time during the year, but the couple can choose to be treated as US residents for the entire year and file a joint return where one spouse was a nonresident alien at the end of the taxable year and the other was a US citizen or resident at the end of it, and that choice remains in effect in subsequent years until terminated. Separately, where both are US citizens or residents at the end of the year and either or both were nonresidents at the beginning of it, they can also choose to file as US residents for the entire year, but that second choice can only be made for 1 year and does not apply to any future years (IRS, Publication 501).
Common Questions
It is a different rule with a similar name, and it is about claiming someone else. You generally cannot claim a married person as a dependent if that person files a joint return, and the exception is narrow: you can claim a person who files a joint return if that person and that person’s spouse file the joint return only to claim a refund of income tax withheld or estimated tax paid (IRS, Publication 501). The rest of the dependency conditions are set out in dependents.
Yes. The statute says so on its face, permitting a single return jointly even though one of the spouses has neither gross income nor deductions (26 U.S.C. 6013(a)).
Yes, and it is normally the surviving spouse who makes it. The return with respect to the decedent may be made by the surviving spouse where no return has been made by the decedent, no executor or administrator has been appointed, and none is appointed before the last day prescribed for filing the survivor’s return (26 U.S.C. 6013(a)(3)). What the survivor may file for the two years after that is a separate status, set out in qualifying surviving spouse.
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